Washington law would have large state ports hire draymen

Tuesday, February 19, 2013

Washington state’s legislature has scheduled a hearing for Tuesday morning on a proposed law that would require large ports in the state to “employ drayage truck operators to load, unload, and transport containerized cargo, other than agricultural products, at or through the port."
Under the proposed law, the port district may enter into contracts with cargo owners and shippers to provide drayage services, and "all loading, unloading, and transporting of containerized cargo, other than agricultural products, in a port district must take place under such contracts.”
A digest of the bill, H.B. 1719, said the law would apply to ports in counties with populations of more than 1 million. (According to the Municipal Research and Services Center of Washington, King County, where Seattle is located, has a population of 1.9 million; Pierce County where Tacoma is located, 802,150.)
The bill appears to be a new approach to improve working conditions for drayage truck drivers by making them employees instead of independent contractors.
An analysis of the bill prepared by the state's legislative staff noted that today “cargo owners, ocean carriers, and other transportation providers generally arrange for drayage services through licensed motor carriers.
“Port districts have the power to perform all necessary activities related to intermodal movement of cargo. Unless provided otherwise in the statutes governing port districts, employees of port districts are covered by the provisions of the public employee collective bargaining statutes.”
It continues, “employment standards generally apply only when there is an employer-employee relationship rather than an independent contractor relationship. There are certain statutory and nonstatutory tests to determine whether a person is an 'independent contractor.'"
The hearing is scheduled before the Washington House Committee on Labor & Workforce Development at 10:00 a.m. PST.
A hearing is also scheduled for 3:30 p.m. Tuesday on another bill, H.B. 1440, before the state’s House Committee on Finance that would affect independent owner operators in the trucking industry.
A digest of that bill said it would establish an “employee fair classification act” and “help address the problems of the underground economy, level the playing field for honest employers and contractors, and protect workers.”
A staff summary of prior testimony on H.B. 1440 said objections were raised because, “in the trucking industry, if a carrier hires an independent owner-operator and tells them where to take a load, that might be control that makes the owner-operator an employee.”
It also noted testimony that objections were raised “the bill will hurt the competitive position of ports and reduce family wage jobs in the maritime industry. The bill converts most independent contractors into employees and takes away the right to be self-employed.”
“The result is banning owner-operators and they do not have the authority to do that either under law or as a market participant,” said Curtis Whalen, executive director of the American Trucking Association’s Intermodal Motor Carriers Conference.
He said H.B. 1719 was similar to a failed effort by the Port of Los Angeles to require drayage drivers be employees of concessionaires rather than independent operators.
Whalen said the Supreme Court is scheduled to hear arguments on April 16 in American Trucking Associations, Inc. v. City of Los Angeles, an appeal of the 2011 decision by the Ninth Circuit Court of Appeals that struck down parts of the plan by the Port of Los Angeles to regulate the drayage industry.
The analysis of H.B. 1719 prepared by the legislative staff noted the Ninth Circuit held that the employee-driver provision proposed by Los Angeles was preempted by a law called the Federal Aviation Administration Authorization Act (FAAAA).
One issue for review by the Supreme Court “is whether banning a motor carrier's access to the port is a partial suspension of the motor carrier's federally granted authority to operate and thereby outside the state's authority,” the analysis noted.
Whalen said “the part of the case that is still active at the Supreme Court really gets into the underlying issue of whether a port acting as a market participant as opposed to a regulator with its state and local authority can do these things from preemption (under the FAAAA). We believe they cannot, and that will certainly be settled by the Supreme Court and we would expect to have a decision by June that will be very applicable to these kind of activities.
“The Teamsters have always relied on the market participant to be their way to get this done, and we are arguing that most of these ports have nothing to do with procuring port drayage or drivers or anything else,” he added. “You can’t wrap yourself in good deeds—saying this is good for the environment, this is good for that—that doesn't make you a market participant and that is the key issue to watch in this upcoming argument and Supreme Court verdict.”
Meanwhile, the Teamsters union said it has had success in several recent efforts to organize port drivers or negotiate contracts for them.
It said 65 port drivers working for the Toll Group in Los Angeles that aligned with the Teamsters in April 2012 negotiated a three-year contract effective Jan. 1 that raised their hourly salary $6 per hour, pays them overtime, and makes them members of a Teamster pension fund and eligible for lower-cost health care.
The Teamsters said also this year 85 port drivers for American Logistics International and 136 drivers for Green Fleet Systems have said they will join the union. - Chris Dupin